1.This writ petition under Article 32 of the Constitution of India
is filed challenging the Notification No. Estt.(RJS)/118/2003 dated 20.10.2003
wherein 19 posts for direct recruitment to the Rajasthan Higher Judicial
Service (in short `RHJS') were advertised. Out of these 19 posts 11 posts were
shown as current vacancies and 8 posts shown as backlog vacancies. A true copy
of the notification is Annexure P-1 to the writ petition. It was specifically
mentioned in the notification that these are subject to orders of the 2 Supreme
Court in four SLPs (subsequently numbered as CA No. 5699 to 5702/2000) relating
to the decision in the case of Veena Verma.

2.On 19.7.2004 the learned counsel for the respondent-High Court
stated that the actual appointments pursuant to the impugned notification dated
20.10.2003 will not be made unless permitted by this Court. Consequently, it is
stated that no appointments have been made in pursuance of the impugned
notification.

3.As noted above, the impugned notification itself mentioned that it
was being made subject to the decision in Veena Verma's case. We have held in
Veena Verma's case (in CA Nos. 5699, 5700 and 5702/2000 decided today) that the
strength of the service is as mentioned in Schedule-I of the Rajasthan Higher
Judicial Service Rules, and for varying the strength there has to be a specific
order under sub-rule (2) of Rule 6. Mere creation of posts without a specific
order under Rule 6(2) in our opinion only creates ex cadre posts, but does not amount
to varying the strength of the service. We have held in that decision that the
Division Bench of the High Court was in error in its judgment dated 30.4.1999
in holding that whenever new posts are created, the strength of the service
automatically increases even though there is no specific order under Rule
6(2)in this connection amending Schedule-I.

4.In Veena Verma's case (supra) we have also held that Rule 9 of the
3 Rules only prescribes an upper limit to the quota for direct recruits in the
service, but there is no lower limit, and it is in the discretion of the
authorities to decide what quota should be given to the direct recruits,
provided it is not more than the maximum prescribed by Rule 9. Our decision in
Veena Verma will apply to this case also.

5.No doubt this Court in All India Judges' Association & Ors.
vs. Union of India & Ors. 2002(4) SCC 247 (vide para 28) has observed that
25% of the posts in the Higher Judicial should be filled by direct recruitment.

This has
been explained by a three Judge Bench of this Court in a recent judgment in
Maharashtra State Judges Association & Ors. vs. The Registrar General, High
Court, High Court of Judicature at Bombay & Anr. (2008 (15) SCALE 320) In
paragraph 14 of the said judgment it was observed :

................."Until
the recommendation was accepted and rules were framed, the
integration/caderisation was a nebulous concept incapable of being claimed or
enforced as a right."...................

The above
observation in the decision in Maharashtra State Judges Association (supra)
makes it clear that until the State Government amends the rules, the
recommendations cannot give any claim for any right.

6.The petitioner in the present writ petition is an association of
judicial officers functioning in the State of Rajasthan, and they are aggrieved
by the 4 impugned notification as they allege that their chances of promotion
get reduced by the same.

7.It is alleged in para 4 of the writ petition that draft rules have
been framed by the High Court which were sent for approval to the State
Government, but pending the finalization of these rules, the High Court
published the impugned notification for filling in 19 posts of Additional
District & Sessions Judges by direct recruitment in the RHJS.

8.According to the petitioner the total cadre strength of RHJS is
150 and there are already 41 direct recruits working in the RHJS. Since the
total cadre strength is 150 and since 25% of the posts were directed by the
High Court to be filled in by direct recruitment, there were no vacant post
available for direct recruits since 25% of 150 is 37, while 41 direct recruits
were already working in RHJS. Petitioner also submitted that if 19 vacancies
should be treated as 25% of the direct recruitment then there must be at least
57 fresh appointments in RHJS by promotion, but that has not been done.

9.The petitioner made a representation dated 3.7.2003 to the High
Court, a true copy of which is Annexure P-2 to the writ petition, and he made
another representation dated 29.10.2003 to the Chief Justice of the High Court
praying for withdrawal of the impugned notification. A true copy of the
representation dated 29.10.2003 is Annexure P-3 to the writ petition. Since the
5 aforesaid representations failed to evoke any response the petitioner filed
the present Writ Petition.

10.Counter and rejoinder affidavits have been filed and we have
perused the same.

11.It has been stated in the counter affidavit of the High Court that
the impugned judgment and directions of the Supreme Court in All India Judges'
Association & Ors. vs. Union of India & Ors. (supra) was to streamline
the cadre of Higher Judicial Service, and accordingly the Chief Justice of the
Rajasthan High Court constituted a committee to examine the entire matter.

The said
committee after considering the various aspects suggested the cadre strength as
240 in the proposed new rules. The recommendation of the committee was
considered in the Full Court which approved the said recommendation and the
resolution of the Full Court on 4.4.2003 was forwarded to the State Government
for formal approval. At present this recommendation is pending before the State
Government.

12.In our opinion, as held by us in Veena Verma's case (supra), the
cadre strength is only 150 and not 240 because the strength of the service is
as per Rule 6(2) of the Rajasthan Higher Judicial Service Rules as mentioned in
6 Schedule-I of the Rule. Until and unless the Schedule is amended in
accordance with Rule 6(2) the strength of the service cannot be varied, as held
by us in Veena Verma's case (supra). As yet, we are told, no order has been
passed under Rule 6(2).

13.We have also perused the counter affidavit filed by the State of
Rajasthan and also the rejoinder affidavit filed in the case. It is stated in
paragraph 3 of the rejoinder affidavit that the impugned notification is in
violation of the stay order dated 28.9.2000 in Special Leave Petition No.9346
of 1999, staying the operation of the order dated 30.4.1999 in DB (c) Spl. Ap. 410/1998.
It is stated in paragraph 6 of the rejoinder affidavit that there are as on
date 220 officers functioning in the cadre of District Judges and Additional
District Judges and as such there are no existing vacancies.

14.In our opinion, this writ petition has to be allowed. In view of
our decision in Veena Verma's case (supra) it has to be held that under the
existing rule the strength of the service of RHJS is 150 and since there are 41
direct recruits already working there is no substantive vacancy. Hence the
impugned notification is illegal and deserves to be quashed.

15.The writ petition is allowed and the impugned notification is 7
quashed. However, we make it clear that it is open to the State Government in
consultation with the High Court to amend Schedule-I to the Rules in accordance
with Rule 6(2) and thereby vary the strength of the service.